Why does the court order mandatory HIV testing? Clients often get offended by this order and wrongfully believe that it is the result of an allegation that the client does have HIV. If you have ever been charged with any kind of sexual offense, as an adult or a juvenile then you probably have received an order from the court requiring you to get HIV testing. We get questions about this order in our office all the time so let’s discuss it here.
HIV Testing Requirement
The statute HIV testing requirement is C.R.S. 18-3-415. This states that any adult or juvenile who is bound over for trial for any sexual offense involving sexual penetration, or any person who is indicated for or is convicted of any such offense, shall be ordered by the court to submit to HIV Testing. The results of the HIV testing shall be reported to the court, and in turn, will be reported to any victim that requests such disclosure. The word “shall” is important. This is a requirement that must be ordered by the Court regardless of its application to you specifically. The results of these tests are closed and confidential with the exception of the victim and the court. No one else will get those records. If a person who is bound over for trial voluntarily submits to the HIV testing, then the facts of the person’s voluntary submission shall be admissible in mitigation of sentence if the person is convicted.
Statute 18-3-415.5 talks about acquiring the immune deficiency syndrome testing- mandatory sentencing. In this statute, it states that any adult or juvenile who is bound over for trial after a preliminary hearing or after having waived the right to a preliminary hearing on a charge of a sexual offense shall be ORDERED by the court to submit to a diagnostic test for HIV. As the last statute states, the HIV test results will be turned over to the court and they shall keep the results confidential except for the use of pleadings and proving mandatory sentencing.
If the person tested positive for HIV, then the District Attorney will contact any health agency in the county in order to find out if that person had been notified of their HIV status before committing the offense. The results of this will be completely confidential except for the purposes of mandatory sentencing. This obviously means if you are HIV positive and it becomes part of the record, it is not exactly confidential. So, it is confidential… if you don’t have HIV.
If the District Attorney determines that the person tested had notice of his or her HIV infection prior to the date the offense was committed, the District Attorney may file an indictment or information alleging such knowledge and seeking mandatory sentencing. Any such allegation will be kept confidential from the jury and under seal of the court.
The District Attorney may gather evidence from any public health official as to the details of when a person knew of their status, or the prosecution and the defendant can stipulate, or agree, to the fact that they knew what their status was before the offense and move right to mandatory sentencing. If the parties do not stipulate then any health official who had prior knowledge of the person’s HIV status may come into the courtroom and identify said person.
There is very specific language in this statute that states this kind of information gathering or evidence presentation is not a breach of the confidentiality between doctor, health care provider, or health care agency and the patient.
What Happens if you are Guilty and Positive?
If a verdict of guilty is returned on the alleged sexual offense and the person tested positive for HIV, the court will have a separate sentencing hearing as soon as practicable to determine if the person had previous knowledge of their HIV status before the offense was committed. The District Attorney shall have the burden of proof to prove beyond a reasonable doubt that said person did have notice of their HIV status. If the court determines that the person did know their HIV status prior to the offense date committed, the judge shall sentence said person to a mandatory term of incarceration of at least THREE times the upper limit of the presumptive range for the level of the offense committed, up to the remainder of their natural life.
In essence, if you get found guilty of knowing your HIV status before the crime you are accused of was committed, the judge will treat this knowledge as a sentencing enhancer. Everyone who is charged with a sexual offense is required to do this kind of testing. It is not a personal attack on you. Once the case has been bound over for trial or after the preliminary hearing or waiver of the preliminary hearing the test shall be ordered from the District Attorney.
If you have further questions about this kind of mandatory testing, please contact an experienced legal attorney to analyze your specific situation. This is not legal advice. For further information please contact our office.